On October 21, 2019, the Massachusetts Superior Court for Suffolk County preliminarily enjoined the State – from and after October 28, 2019 – from implementing and enforcing the ban as to “nicotine-vaping products” unless and until the executive branch promulgated the regulation in accordance with Massachusetts due process requirements. The court allowed the ban to continue with respect to “products containing tetrahydrocannabinol (THC) and any other cannabinoid or to black market products.” In a 34-page opinion, the court found that the State had likely overreached the scope of its statutory authority in promulgating the ban without duly adopting a regulation in accordance with these due process requirements. As a result, the court opined that the ban would likely be found arbitrary and capricious unless the State addressed the due process deficiencies.

While the court declined to rule out nicotine-vaping products as a cause of the outbreak, the court pointed out that the Centers for Disease Control’s (CDC) assessment of retail nicotine-vaping products sold to adults is “less dire” than its assessment of products containing THC, and the CDC’s published data reflects declining percentages of patients who “reported exclusive use of nicotine-containing products.” The court also noted CDC’s general concerns about the reliability of the self-reported data as to nicotine-exclusive product use.

The court’s order gives the State the opportunity properly to enact the ban as an emergency regulation, provided a true emergency exists and the State complies with state law requiring public input within the requisite time period. To this effect, it is notable that the court stated “The Governor has already declared an emergency under § 2A, but the long-standing and ongoing youth vaping epidemic figured prominently in that declaration. It remains to be seen whether the executive branch can or will declare an emergency with respect to adult use of nicotine-vaping products.” The court then cited to the Michigan decision blocking that state’s ban that was the subject of a previous Troutman Sanders blogpost.

Given the one-week delay in the implementation of the court’s decision to enjoin the ban, Massachusetts may pursue both appellate and regulatory paths. Keep checking our blog as we monitor these developments.